On behalf of the defendant-appellant,
the cause was submitted on the briefs of Martin E. Kohler and Craig
S. Powell of Kohler & Hart, LLP, of Milwaukee.

Respondent

ATTORNEYS:

On behalf of the plaintiff-respondent,
the cause was submitted on the brief of Peggy A. Lautenschlager,
attorney general, and Stephen W. Kleinmaier, assistant attorney
general.

2007 WI App 233

COURT OF APPEALS

DECISION

DATED AND FILED

September 5, 2007

David R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2006AP929-CR

Cir. Ct. No.2005CF5366

STATE OF WISCONSIN

IN COURT OF
APPEALS

State of Wisconsin,

Plaintiff-Respondent,

v.

Dennis M. Gralinski,

Defendant-Appellant.

APPEAL
from an order of the circuit court for Milwaukee County:mel
flanagan, Judge.Affirmed.

Before Curley, P.J., Fine and Kessler, JJ.

¶1CURLEY, P.J. Dennis M. Gralinski
appeals from an order denying his motion to suppress physical evidence seized
during a search of his home, and statements that he made, on the basis that the
statements were the fruits of the illegal search of his home.At issue is whether the affidavit supporting
the search warrant provided probable cause to justify the search of Gralinski’s
home and computer.Gralinski argues that
the affidavit did not provide probable cause to believe that evidence of child
pornography would be found in his home.In addition, he argues that the information contained in the affidavit
was stale due to a lapse of two and one-half years.Lastly, he argues that the good-faith
exception to uphold an invalid search warrant does not apply.

¶2We conclude that the warrant-issuing commissioner had a
substantial basis for finding that there was probable cause to issue the
warrant to search Gralinski’s home for the items specified in the warrant.Furthermore, under the circumstances
presented here, we disagree with Gralinski’s contention that the information
contained within the supporting affidavit was stale.[1]Accordingly, we affirm the trial court’s
order denying his motion to suppress evidence.

I. Background.

¶3The Bureau of Immigration and Customs Enforcement (ICE) is
responsible for Operation Falcon, a nationwide investigation focusing on
Internet child pornography crimes.In
February 2003, the investigation revealed that a company known as Regpay owned
and operated various members-only Internet websites containing images of what
appeared to be children engaging in pornographic and sexually explicit conduct
with other children and with adults.

¶4In June 2003, federal agents seized Regpay’s customer
database, which contained records for each Regpay customer who purchased access
to Regpay’s child pornography websites.The records contained the purchaser’s name, home address, e-mail
address, credit card number, names of websites to which access was purchased,
and the dates of purchase.

¶5Regpay’s records revealed that on March 9, 2003, Gralinski’s
credit card was used to purchase a membership to a Regpay website that included
a free membership to a second website.In addition to containing Gralinski’s name, credit card number, and the
name of the website that the membership was purchased for, Regpay’s records
contained Gralinski’s e-mail address and home address.When federal agents visited the websites to
which Gralinski’s membership afforded access, they determined that the sites
“contained extensive collections of sexually explicit photographic and video
images of what appear to be real children posing and/or engaged in pornographic
activities with other children.”

¶6On June 3, 2005, a special agent with the Wisconsin
Department of Justice reviewed ICE reports regarding the contents of the
websites that Gralinski had received access to by way of the membership
purchase and verified that the description of the images found at the websites
constituted child pornography as legally defined in Wisconsin.On September 4, 2005, the special agent
reviewed records obtained by ICE with documentation verifying Gralinski’s
e-mail address, home address, and telephone number.

¶7On September 8, 2005, the special agent submitted a
fifteen-page affidavit for a search warrant for Gralinski’s home.The affidavit detailed the special agent’s
qualifications, provided information regarding Operation Falcon, explained how
computers are used for child exploitation, and summarized the facts
establishing probable cause, which included the details surrounding the seizure
of Regpay’s customer database and the subsequent identification of Gralinski as
a Regpay customer.In addition, the
affidavit contained a description of the websites to which access was purchased
with Gralinski’s credit card.

¶8The affidavit also provided the following with respect to
computer usage in the context of child pornography:

10. Once
an individual opens an image of child pornography on his computer or accesses
such an image through the Internet, that image is saved in the computer’s
“cache.”This allows investigators to
review a history of the images opened/accessed by the user of the computer long
after the image has been opened or accessed.

….

15. Based
on his training and experience, your affiant knows that each time an individual
views an online digital image, that image, or remnants of that image, are
automatically stored in the hard-drive of the computer used to view the
image.Your affiant knows that a
forensic examination of such a hard-drive can identify and retrieve such
images, including those of child pornography, even if those images have been
deleted by the computer operator.

….

18. Based
on his training and experience, your affiant knows that individuals who are
involved with child pornography are unlikely to ever voluntarily dispose of the
images they possess, as those images are viewed as prized and valuable
materials.

¶9Based on the information contained in the special agent’s
affidavit, a Milwaukee county court commissioner signed the warrant authorizing
the search of Gralinski’s home, which was executed on September 13, 2005.At that time, investigators removed the hard
drive from Gralinski’s computer and discovered images from child pornographic
websites.

¶10On September 16, 2005, Gralinski was charged with five counts
of possession of child pornography in violation of Wis. Stat. § 948.12(1m) (2003‑04).[2]Gralinski moved to suppress the physical
evidence seized and statements that he made.The trial court denied the motion, finding that the affidavit stated
probable cause.In addition, the trial
court concluded that the delay between March 2003 and September 2005 did not
defeat probable cause.In light of its
findings in support of probable cause, the trial court did not address the
applicability of the good-faith exception.

¶11We granted Gralinski’s petition for interlocutory appeal,
following the trial court’s denial of his motion to suppress.

II. Analysis.

A. Probable
Cause

¶12Gralinski argues that the special agent’s affidavit did not
demonstrate probable cause for searching his home.Specifically, he contends that “the search
warrant affidavit in the present case essentially stated only a single,
facially non‑incriminating fact supposedly connecting Gralinski to
illegal activity—his credit card number was used in an online transaction to
purchase a membership to a website later found to contain images of child
pornography.”Gralinski argues that it
was unreasonable for the trial court to infer that he conducted the credit card
transaction given the significant amount of credit card fraud that exists.[3]He further argues that to get from the fact
that Gralinski’s credit card number was used “to a reasonable probability that
Gralinski’s home contained evidence of possession of child pornography in
September 2005 requires the piling of inferences and near total reliance on the
stated training and experience of the affiant in lieu of the requirement that a
magistrate be presented with sufficient facts.”We disagree with these contentions and conclude that the warrant-issuing
commissioner had a substantial basis for concluding that there was probable
cause to issue the warrant to search Gralinski’s residence.

¶13In reviewing a motion to suppress, we engage in a two-step
inquiry.State v. Pallone,
2000 WI 77, ¶27, 236 Wis. 2d 162, 613 N.W.2d 568.First, we apply a deferential standard to the
trial court’s findings of historical fact, and will “thus affirm the [trial]
court’s findings of fact, and inferences drawn from those facts, unless they
are clearly erroneous.Second, we review
the [trial] court’s application of constitutional principles to the evidentiary
facts.This second step presents a
question of law that we review independently.”Id.

¶14Wisconsin
Stat. § 968.12(1) provides that a search warrant shall issue “if
probable cause is shown.”To support a
determination that probable cause exists, the magistrate must be “‘apprised of
sufficient facts to excite an honest belief in a reasonable mind that the
objects sought are linked with the commission of a crime, and that the objects
sought will be found in the place to be searched.’”State v. Higginbotham, 162 Wis.
2d 978, 989, 471 N.W.2d 24 (1991) (citations and one set of quotation marks
omitted).In challenging the search
warrant, Gralinski bears the burden of establishing insufficient probable
cause.See State v. Schaefer,
2003 WI App 164, ¶5, 266 Wis. 2d 719, 668 N.W.2d 760.

The task of
the issuing magistrate is simply to make a practical, commonsense decision
whether, given all the circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime
will be found in a particular place.

Id.
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).The requirement that law enforcement officers
obtain a search warrant was not designed to preclude them from receiving “the
support of the usual inferences that reasonable individuals may draw from
evidence.”Id., ¶28.However, inferences may be drawn only by “a neutral and detached magistrate …
instead of a law enforcement officer who is engaged in the often competitive
enterprise of ferreting out crime.”Id.
(citations and internal quotation marks omitted).

¶16Our review of the warrant-issuing magistrate’s determination of
probable cause is deferential, and the magistrate’s “determination will stand
unless the defendant establishes that the facts are clearly insufficient to support
a finding of probable cause.”Higginbotham,
162 Wis. 2d at 989.We take into account
only the facts that were presented to the commissioner, Ward, 231
Wis. 2d 723, ¶26, and we recognize that “both the experience and special
knowledge of police officers who are applying for search warrants are among the
facts that the warrant-issuing court may consider,” Multaler, 252
Wis. 2d 54, ¶43.

¶17Gralinski relies on United States v. Weber, 923
F.2d 1338 (9th Cir. 1990), to support his argument that inferences “stacked” by
the trial court and the magistrate to support the validity of the search
warrant “amount[ed] to shoddy constitutional masonry.”In Weber, the court concluded
that the warrant issued was invalid because it sought items not based on
probable cause.Id. at
1343.Two years prior to when the
affidavit was issued, Weber was sent advertising materials that were
intercepted because they were “apparently” child pornography.Id. at 1340.As a result, Weber became the target of an
investigation.Id.Approximately twenty-one months
later, Weber responded to a government-generated advertisement for child
pornography and ordered materials.Id.A warrant was then issued and executed
shortly after a federal agent, dressed as a delivery person, delivered the
materials that Weber ordered.Id.
at 1341.

¶18Weber did not deny that probable cause existed for the
materials that he ordered in response to the government-generated
advertisement.Id. at
1343.Instead, he argued that there was
no probable cause to support the plethora of other materials sought in the
affidavit, beyond the materials he ordered.Id.The court
concluded that based on the information known to the federal agent when he
prepared his affidavit, the number of inferences that would have to be drawn to
support a finding of probable cause for the additional items specified in the
affidavit made the search of Weber’s residence unreasonable.Id. at 1345.

¶19Gralinski’s circumstances are different than those present in Weber,
where other than the order placed by Weber at the government’s solicitation,
the only other fact suggesting that Weber may have had child pornography in his
house on the day of the search was the advertising material that had been
intercepted almost two years prior.Id.
at 1345.Here, the affidavit detailed
the fact that Gralinski’s credit card had been used to purchase a membership
that afforded him access to websites containing child pornography.In addition, the affidavit contained
information relating to the special agent’s experience and knowledge of
individuals who are involved with child pornography and of the longevity of
images viewed through the Internet to remain on a computer.See Multaler, 252 Wis. 2d 54,
¶43.

¶20Thus, unlike in Weber, where the affidavit was
not tailored to the information known about Weber, but rather described
generally information “about different types of perverts who commit sex crimes
against children,” id., 923 F.2d at 1345, in this case, the
special agent’s affidavit was tailored such that it was reasonable for the
commissioner to conclude that it provided a substantial basis to find probable
cause.In addition, the nature of the
materials constituting child pornography in Weber (photographs)
compared to the Internet images involved here, make Weber
inapposite.See generally United
States v. Wagers, 452 F.3d 534, 540 (6th Cir. 2006) (noting “that
evidence that a person has visited or subscribed to websites containing child
pornography supports the conclusion that he has likely downloaded, kept, and
otherwise possessed the material”).

¶21Similar to the facts at issue, United States v. Gourde,
440 F.3d 1065, 1066 (9th Cir. 2006) (en banc), cert. denied, 127 S. Ct.
578 (2006) (Gourde II), arose out of an appeal from a trial
court’s denial of Gourde’s motion to suppress images of child pornography found
on his personal computer.There, federal
agents discovered that Gourde had a membership to a website containing child
pornography, for which he had provided his home address, date of birth, and e‑mail
address.Id. at
1067-68.The affidavit in support of the
warrant detailed the steps taken by Gourde to become a member (i.e., submitting
his home address, e‑mail address, credit card data, and consenting to
have money deducted from his credit card every month, thus defeating any
argument that Gourde became a member “by accident”).Id. at 1068, 1070.In addition, the affidavit provided facts
regarding the website and the images it offered, to which Gourde had
access.Id. at 1068.Furthermore, the affidavit contained
background information on computers and the traits of child pornography
collectors.Id.

¶22In concluding that this information was sufficient to support
the magistrate’s decision to issue a warrant, the Gourde II court
noted:

Given
this triad of solid facts–the site had illegal images, Gourde intended to have
and wanted access to these images, and these images were almost certainly
retrievable from his computer if he had ever received or downloaded them–the
only inference the magistrate judge needed to make to find probable cause was
that there was a “fair probability” Gourde had, in fact, received or downloaded
images.

Id.
at 1071.The court further concluded
that “[t]he details provided on the use of computers by child pornographers and
the collector profile strengthen this inference ….”Id. at 1072.As a result, the Gourde II court
refused Gourde’s attempt to “elevate probable cause to a test of near
certainty.”Id. at
1072.

¶23In his motion to suppress heard by the trial court, Gralinski
relied on United States v. Gourde, 382 F.3d 1003 (9th Cir. 2004)
(Gourde I), which he described as a case involving “circumstances
similar to those of the present case.”[4]In Gourde I, the court
concluded that the affidavit failed to establish a fair probability that child
pornography would be found on Gourde’s computer and thus did not support a search
warrant.Id. at 1013.However, now, in light of Gourde II,
Gralinski attempts to distinguish his circumstances from those at issue in that
case on the basis that the Gourde affidavit contained additional
facts relating to the duration of Gourde’s membership and based on the
website’s set up in Gourde, which required subscribers to pass
through two pages that advertised and displayed child pornography.We are not persuaded by Gralinski’s attempts
to distinguish his circumstances from those found in a case that he previously
relied on.

¶24Here, like the court in Gourde II, we conclude
that the use of a credit card issued to Gralinski to purchase a membership to
websites containing child pornography, together with customer records
confirming Gralinski’s home address, e-mail address, and credit card
information, result in the inference that there was a fair probability that
Gralinski had, in fact, received or downloaded images.See id., 440 F.3d at 1071.The details provided on the use of computers
by individuals involved in child pornography found in the affidavit supporting the
search of Gralinski’s home strengthens this inference.See id. at 1072; Ward,
231 Wis. 2d 723, ¶28 (noting that “‘[a]lthough the finding cannot be based on
the affiant’s suspicions and conclusions, the magistrate may make the usual
inferences reasonable persons would draw from the facts presented’”) (citation
omitted; alteration in Ward); see also State v. Lindgren,
2004 WI App 159, ¶¶18-20, 275 Wis. 2d 851, 687 N.W.2d 60 (holding that affiant
“placed a plausible scenario, based on facts and experience, before the court,”
which provided sufficient justification for a search of the home of the
defendant, who took nude photographs of a minor employee at his business).

¶25In reaching this conclusion, we are mindful that “[t]he test is
not whether the inference drawn is the only reasonable inference.The test is whether the inference drawn is a
reasonable one.”See Ward,
231 Wis. 2d 723, ¶30 (emphasis added).Accordingly, we conclude that Gralinski cannot avoid a finding that
probable cause existed based on the slight chance that someone other than
himself used the credit card to access the websites and further find that the
warrant-issuing magistrate’s determination of probable cause was reasonable.

B. Stale
Information

¶26Gralinski next contends that the warrant was invalid because it
was based on stale information such that no inference could be drawn that the
items sought in the warrant would be located in his home two and one-half years
after the membership to the Regpay website was purchased.He bases his argument on his contention that
the affidavit did not demonstrate a pattern of actual and ongoing possession of
child pornography by him.We disagree
with Gralinski and conclude that the concept of staleness is not a bar to
probable cause under the circumstances of this case.

¶27In deciding whether probable cause is stale, “timeliness is not
determined by a counting of the days or months between the occurrence of the
facts relied upon and the issuance of the warrant.”State v. Ehnert, 160 Wis. 2d
464, 469, 466 N.W.2d 237 (Ct. App. 1991).Even old information can support probable cause.See Multaler, 252 Wis. 2d 54,
¶36 (noting the distinction between stale information and stale probable
cause).

Stale probable cause, so called,
is probable cause that would have justified a warrant at some earlier moment
that has already passed by the time the warrant is sought.

There
is not, however, any dispositive significance in the mere fact that some
information offered to demonstrate probable cause may be called stale, in the
sense that it concerns events that occurred well before the date of the
application for the warrant.If such
past fact contributes to an inference that probable cause exists at the time of
the application, its age is no taint.

¶28To determine whether probable cause is sufficient where a
staleness challenge is raised requires a review “of the underlying
circumstances, whether the activity is of a protracted or continuous nature,
the nature of the criminal activity under investigation, and the nature of what
is being sought.”Multaler,
252 Wis. 2d 54, ¶37 (citing Ehnert, 160 Wis. 2d at 469‑70).No single aforementioned consideration is
dispositive given that, as noted above, probable cause determinations are made
on a case-by-case basis, “looking at the totality of the circumstances.”Id., ¶34.

¶29In Multaler, as part of their investigation of
homicides that took place twenty years prior, police obtained a warrant to
search the defendant’s home for evidence of those crimes.Id., ¶3.While executing the warrant, the police
discovered computer disks containing child pornography.Id.The defendant moved to suppress the disks
arguing, in part, that the information in the affidavit supporting the warrant
was stale because no inference could be drawn that evidence related to the murders
would remain in his home twenty years after the murders occurred.Id., ¶10.The Multaler court disagreed
that the information was stale, and to support its conclusion that the
affidavit provided probable cause, emphasized the “unusual tendency of serial
homicide offenders, as stated in the affidavit, to collect and retain items
that constitute evidence of their crimes.”Id., ¶40.In noting
the variety of factors and circumstances to be considered in a staleness
challenge, the Multaler court offered the following example:“‘The observation of a halfsmoked marijuana
cigarette in an ashtray at a cocktail party may well be stale the day after the
cleaning lady has been in; the observation of the burial of a corpse in a
cellar may well not be stale three decades later.’”Id., ¶37 (citations
omitted).

¶30Just as the court in Multaler found that the
issue of staleness in that case depended, in part, upon the tendencies of
serial killers to collect and retain items evidencing their crimes, id.,
¶40, here, the issue of staleness depends, in part, upon the tendencies of
collectors of child pornography, as detailed in the special agent’s
affidavit.Gralinski does not contest
the special agent’s description of the habits of collectors of child
pornography in the affidavit supporting the search warrant.In this regard, the affidavit provided “that
individuals who are involved with child pornography are unlikely to ever
voluntarily dispose of the images they possess, as those images are viewed as
prized and valuable materials.”Given
the specific factual information obtained when Regpay’s customer databases were
seized that Gralinski’s credit card had been used to purchase a membership to
sites containing child pornography, it was reasonable for the magistrate to
infer that Gralinski downloaded visual child pornography from the websites to
his computer.[5]

¶31Because possession of child pornography on one’s computer
differs from possession of other contraband in the sense that the images remain
even after they have been deleted, and, given the proclivity of pedophiles to
retain this kind of information, as set forth in the affidavit supporting the
request for the search warrant, there was a fair probability that Gralinski’s
computer had these images on it at the time the search warrant was issued and
executed.SeeWard,
231 Wis. 2d 723, ¶23.The affidavit
explains that “[o]nce an individual opens an image of child pornography on his
computer or accesses such an image through the Internet, that image is saved in
the computer’s ‘cache.’”The affidavit
further states “that each time an individual views an online digital image,
that image, or remnants of that image, are automatically stored in the
hard-drive of the computer used to view the image … even if those images have
been deleted by the computer operator.”Thus, at the time the warrant issued and was executed, the probable
cause to search Gralinski’s residence was not stale.[6]

¶32Gralinski offers one non-controlling case to support his
contention that “the failure to demonstrate his actual and ongoing
possession [of child pornography] renders the 30-month-old information stale.”See United States v. Greathouse,
297 F. Supp. 2d 1264, 1272-73 (D. Or. 2003).Wisconsin caselaw, however, does not require such a showing.To the contrary, “whether the activity is of
a protracted or continuous nature” is but one consideration to be taken into
account in reviewing the totality of the circumstances. Multaler, 252 Wis. 2d 54, ¶¶34,
37.Moreover, there is no requirement
that an affidavit conclusively demonstrate actual possession, as Gralinski
argues; rather, the requirement is only that there be “‘an honest belief in a
reasonable mind that the objects sought are linked with the commission of a
crime, and that the objects sought will be found in the place to be searched.’”Higginbotham, 162 Wis. 2d at
989 (citation omitted).

¶33Considering all of the information in the affidavit and our
deferential review of the magistrate’s determination, we are satisfied that
staleness is not a bar to probable cause.Accordingly, we affirm the trial court’s denial of Gralinski’s
suppression motion.[7]

By the Court.—Order affirmed.

[1] We
are aware of a recent unpublished case, State v. Park, No.
2006AP1139-CR, unpublished slip op. (WI App Aug. 7, 2007), dealing with a
search warrant of a computer for child pornography.The dispositive issue in Park
requiring a remand was not raised in this case.

[2] All
references to the Wisconsin Statutes are to the 2003-04 version unless
otherwise noted.

[3]
Gralinski offers no evidence to support that he has been a victim of credit
card fraud.Nevertheless, to bolster his
argument regarding the surge of identity theft crimes, Gralinski cites Will
v. Hallock, 546 U.S. 345 (2006), as an example of the danger of issuing
a warrant under circumstances he contends are similar to those at issue here.There, information about Hallock’s credit
card was stolen and used to pay a subscription fee to a website containing
child pornography.Id. at
347‑48.Federal agents obtained a
warrant to search the Hallocks’ residence, and in seizing the Hallocks’ computer
equipment, damaged the disk drives to the extent that all of the stored data
was lost, forcing the Hallocks out of business.Id.The issue
before the United States Supreme Court in Hallock involved the
Federal Tort Claims Act, not whether probable cause existed to search the
Hallocks’ residence, and as such, it provides no guidance on the issue
presented to this court.Furthermore,
unlike in Hallock, here, no evidence has been offered that would
lead us to conclude that information about Gralinski’s credit card was
stolen.

[4] A
rehearing en banc was granted on July 14, 2005, United States v. Gourde,
416 F.3d 961 (9th Cir. 2005), and, as detailed above, the en banc court subsequently
concluded that there was sufficient probable cause to support the issuance of a
warrant to search Gourde’s residence and computers, United States v.
Gourde, 440 F.3d 1065, 1066 (9th Cir. 2006) (Gourde II).

[5] Gralinski
argues that the affidavit “fails to lay a foundation sufficient to classify
[him] as a collector, pedophile or any other person with a propensity to hoard
child pornography.”We note that the
affidavit provides:“Your affiant
believes Gralinski has demonstrated an interest in [child pornography] by
meticulously providing detailed personal information, including his name,
address, e-mail address, telephone number and credit card number to websites
trafficking in child pornography.”This
statement, along with the entirety of the facts contained in the affidavit and
the reasonable inferences that can be drawn from them, lead us to conclude that
there was a sufficient foundation to justify the warrant-issuing magistrate’s
decision to issue a search warrant.See
State v. Schaefer, 2003 WI App 164, ¶17, 266 Wis. 2d 719, 668 N.W.2d
760 (noting that the defendant’s approach would have the court focus on
individual parts of the affidavit at issue as opposed to having the court view
the statements in their entirety allowing reasonable inferences to be drawn); see
generally State v. Higginbotham, 162 Wis. 2d 978, 991, 471 N.W.2d 24
(1991) (we defer to the warrant-issuing magistrate because “‘[r]easonable minds
frequently may differ on the question of whether a particular affidavit
establishes probable cause’”) (citation omitted; alteration in Higginbotham).

[6]Gralinski argues that even if evidence can be
retrieved from a computer “in perpetuity,” the staleness inquiry is still
relevant to probable cause.He contends
that the trial court erred in its finding that computers are repositories of
potential evidence such that the information they contain is essentially
“timeless” because such a finding abrogates the staleness doctrine in all child
pornography cases.As evidenced by our
analysis above, we agree that the staleness inquiry remains relevant to a
probable cause determination despite the fact that the evidence at issue is found
in a computer.We disagree, however,
that viewing a computer as a repository of potential evidence will have the
wide-scale effect of abrogating the staleness doctrine in all child pornography
cases.Computers are frequently involved
in effectuating numerous other crimes, and yet, computer storage and retention
has not abrogated the staleness doctrine in other contexts.Consequently, we see no reason why computer
storage would have such an effect in the context of child pornography.In light of the fact that a probable cause
determination is made on a case-by-case basis looking at the totality of the
circumstances, State v. Multaler, 2002 WI 35, ¶¶34, 37, 252 Wis.
2d 54, 643 N.W.2d 437, we anticipate that there will be situations where the
facts are such that probable cause cannot be established even where downloaded
images of child pornography are involved.

[7] Because
we find the search warrant was supported by probable cause, we do not reach
Gralinski’s last argument that the good-faith exception to uphold an invalid
search as articulated in United States v. Leon, 468 U.S. 897,
920-23 (1984), should not apply.See
alsoGross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938)
(unnecessary to decide non-dispositive issues).